Citation Nr: 1510026
Decision Date: 03/11/15 Archive Date: 03/24/15
DOCKET NO. 10-09 456 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for a dental disorder for treatment purposes.
REPRESENTATION
Veteran represented by: Jan Dils, Attorney at Law
WITNESSES AT HEARING ON APPEAL
The Veteran and his father
ATTORNEY FOR THE BOARD
M. Donohue, Counsel
INTRODUCTION
The Veteran served on active duty from September 2004 to January 2007.
These matters come before the Board of Veterans' Appeals (Board) on appeal of December 2007 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in March 2014. A transcript of the hearing has been associated with the Veteran's VA claims file.
The issue of entitlement to service connection for a dental disorder for treatment purposes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
Two issues previously on appeal, entitlement to increased ratings for a lumbar spine disability and concussion residuals, were withdrawn by the Veteran in a July 2012 statement. Therefore, these issues have been duly withdrawn and will be discussed no further herein. See 38 C.F.R. § 20.204 (2014).
The issue of entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU) is currently before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, since the Board is granting a 100 percent schedular rating for PTSD thought the appeal period, the claim for TDIU is rendered moot. See 38 C.F.R. § 3.340 (A TDIU can only be awarded where the schedular rating is less than total.).
FINDING OF FACT
Since January 11, 2007, the effective date of the award of service connection, the Veteran PTSD symptomatology has more nearly approximated that of total occupational and social impairment.
CONCLUSION OF LAW
Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 100 percent rating for PTSD have been met or approximated since January 11, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.15, 4.126, 4.130, Diagnostic Code 9411 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014).
In this case, however, the Board is granting a 100 percent rating for PTSD throughout the entire rating period on appeal. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.
II. Law and Regulations
Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2014). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4.
The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The Veteran's service-connected PTSD is currently rated under 38 C.F.R. § 4.130 Diagnostic Codes 9411 (posttraumatic stress disorder). Upon review, Diagnostic Code 9411 is deemed by the Board to be appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411.
Under the general rating formula for mental disorders, a 30 percent evaluation is contemplated when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).
A 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent disability evaluation is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting); inability to establish and maintain effective relationships.
A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.
The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment.
In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."
III. Analysis
The Veteran's PTSD is currently assigned a 30 percent disability rating. For the following reasons, the Board finds that a 100 percent rating is warranted throughout the appeal period.
During an April 2007 VA examination, the Veteran reported that he was working part-time as a chef in a restaurant. It was noted that the Veteran's anxiety level was high and he reported that he was "ready to snap at anyone at any time."
The record indicates that the Veteran subsequently relocated to North Carolina where he worked at a café preparing food and managing staff. In a statement received in November 2007, the Veteran's employer reported that the Veteran was terminated from this job due to "very unsatisfactory work performance."
During a November 2007 VA PTSD examination, the Veteran reported that he is "very short-tempered" and has trouble getting along with people. He stated that he can no longer work full time, but now had a part-time job as a cook in a retirement home. Notwithstanding this reduction in work, the VA examiner noted that the Veteran continues to have difficulty interacting with others and that he has "no friends and limited recreational and leisure pursuits."
A VA treatment record from March 2008 documented that the Veteran had lost three jobs within the first year of his separation from service due to his inability to get along with his employers.
A private treatment record from September 2008 notes that the Veteran is currently unemployed due to his PTSD.
In a September 2008 letter, C.R., M.D., stated that the Veteran's PTSD has "destroyed both his personal and professional life with him appearing distant [to his] peers and family." It was also noted that the Veteran's nightmares keep him awake and his lack of sleep prevents him from holding "down a meaningful job or enjoy[ing] his family."
During an October 2008 VA examination, the Veteran reported that he is "isolated and indifferent around the house." The report indicates that the Veteran was again working part-time, but had missed "three to four days a month because of his psychiatric symptoms." It was noted that he has "no close friends and limited recreational and leisure pursuits."
A suicide risk screening conducted during VA outpatient treatment in May 2009 revealed that the Veteran had intended to harm others.
While receiving VA treatment in September 2009, the Veteran reported that he experiences "rages at night" and "panic attacks all the time." He stated that he had recently lost his job and his employer was so afraid of the Veteran that someone else had to fire him. The Veteran complained that he can't hold a job and is no longer allowed to enter his friends' homes due to his PTSD symptoms. The treating psychiatrist concluded that despite his best efforts, the Veteran's PTSD symptoms "continue to render him occupationally and socially incapacitated." In this capacity, the Board notes that a VA treatment record created less than three weeks later suggests that the Veteran had obtained a new job but was already in jeopardy of losing it. See a September 17, 2009 VA treatment record.
A separate VA treatment record from September 2009 documented that the Veteran experiences homicidal ideations.
In October 2009, the Veteran reported that he experiences road rage and has exited his vehicle to confront other drivers. The treating clinician found that the Veteran has been experiencing irritability and anger control issues since he separated from active duty. It was also reported that the Veteran has severe memory problems and clinical testing revealed severe impairment in visual immediate memory and auditory recognition memory.
During a July 2010 VA examination, the Veteran reported that his relationship with his wife is getting more distant and he doesn't have any friends. It was also reported that the Veteran had an incident of road rage in "late Fall 2008 in which he ran a car off the road into a ditch and beat up a guy who was in the car."
The Veteran testified during the March 2014 hearing that he has extreme problems with his memory. Specifically, he reported that on the day before the hearing, he attempted to call his wife at work but forgot her name. See Board Hearing Transcript, 11. He also reported that he has to put "quirky names for people in [his] phone" so he can remember them, and that he has lost things after briefly setting them down. Id at 12.
In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran has met or approximated the criteria necessary for a 100 percent rating.
As to work, throughout the appeal period the Veteran has attempted to work without success. He has been unable to maintain a job as a result of his PTSD symptomatology. As noted, a VA clinician concluded that despite his best efforts, the Veteran's PTSD symptoms "render him occupationally and socially incapacitated." Dr. C.R. also concluded that the Veteran's PTSD has "destroyed" his professional life and prevents him from holding down "a meaningful job."
As to social impairment, the record indicates that the Veteran has homicidal ideations and is no longer welcome in his friends' homes. His memory impairment is so severe that he is unable to remember the names of close family members. He has expressed road rage that is so severe that he presents a danger to other drivers.
The Board acknowledges that the record contains some evidence suggesting that the Veteran's PTSD does not result in total occupational and social functioning. For example, in a March 2012 report, a VA examiner stated that the Veteran's PTSD symptoms were not severe enough to interfere with his occupational or social functioning. Based on the symptoms described above, however, the Board finds that the 100 percent criteria have been met or approximated throughout the appeal period.
After a review of all the lay and medical evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran's PTSD more nearly approximates the criteria for a 100 percent rating. The Veteran's symptomatology has resulted in total social and occupational impairment throughout the period on appeal. 38 U.S.C.A. §5107; 38 C.F.R. §§ 3.102, 4.130.
ORDER
A 100 percent schedular rating for PTSD is granted, effective from January 11, 2007, subject to controlling regulations governing the payment of monetary awards
REMAND
The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a) (2014).
In this case, the claim of entitlement to service connection for a dental disability for purposes of VA outpatient treatment has not been or referred to VHA for a determination on the relevant questions.
Accordingly, the remaining issue is REMANDED for the following action:
1. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) of the VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161.
2. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, readjudicate the claim.
3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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B.C. MORTON
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs